THEE RANT

Friday, August 14, 2009

William McCaffrey met Biurny Peguero on a hot night in Upper Manhattan in September 2005. The next morning, Ms. Peguero said he had raped her on their way to an after-hours party.

Swabs and other samples taken at a hospital did not provide DNA evidence against Mr. McCaffrey, but in 2006 a jury in State Supreme Court in Manhattan convicted him.

Last year, after he had served 2 years of a 20-year sentence, a new DNA test showed that bite marks on Ms. Peguero’s arm and shoulder the morning she reported that she had been attacked could not have been made by Mr. McCaffrey — the genetic material lacked a Y chromosome, meaning it could not have come from a man.

This March, according to court papers, Ms. Peguero, now married and known as Biurny Peguero Gonzalez, went to confession and told a priest that her story about the rape had been a lie. She told the Manhattan district attorney’s office the same thing.

Mr. McCaffrey remains in prison. On Wednesday, his lawyer, Glenn A. Garber, founder and director of the Exoneration Initiative, a nonprofit legal group that handles prisoners’ claims of innocence, will ask a justice in State Supreme Court in Manhattan to vacate the conviction and order him freed.

Ms. Gonzalez, 26, said through her lawyer, Paul F. Callan, that she supported Mr. McCaffrey’s release and had been cooperating with the district attorney’s office.

Mark Dwyer, the chief assistant district attorney, acknowledged that the DNA test and Ms. Gonzalez’s about-face had raised questions about Mr. McCaffrey’s conviction. “We are committed to completing a full, thorough investigation of the matter and have been conducting one,” he said, adding that he hoped to finish it in September.

But the case creates a touchy situation: Ms. Gonzalez could face perjury charges for her testimony at Mr. McCaffrey’s trial. Court papers filed by Mr. Garber say that she has refused to cooperate with the defense and has indicated that she would invoke her Fifth Amendment right against self-incrimination and refuse to testify if called again.

Through Mr. Callan, she refused to be interviewed for this article. Mr. Callan said he had been pressing the district attorney’s office not to file criminal charges against her and to let her testify on behalf of Mr. McCaffrey.

The court papers say she invented the rape to cover for a fight she had had with some of her women friends. The fight had been so fierce that one of the women kicked and broke a window in a car, according to the papers.

The next morning, Ms. Peguero went to Christ Hospital in Jersey City, saying she had been raped. Officials notified the police in Manhattan, and soon Mr. McCaffrey was in custody.

He testified at his trial that he had met Ms. Peguero at the corner of Broadway and Dyckman Street in Inwood. She was in a parked car with at least one friend. Mr. McCaffrey invited her to an after-hours party. He got in the car and they drove off with Ms. Peguero at the wheel, trailing some friends of his who were in another car.

According to Mr. McCaffrey’s court papers, he soon decided that Ms. Peguero was too drunk to drive, and he took over. A friend of hers got out of the car, leaving Mr. McCaffrey and Ms. Peguero by themselves. Mr. McCaffrey drove to a parking garage, where they left the car and got into a friend’s van to continue to the party.

They soon turned back after Ms. Peguero got a barrage of cellphone calls from friends, the court papers say. The garage attendant testified at the trial that some of Ms. Peguero’s friends eventually showed up and got in her car with her, “yelling and hitting each other.”

Ms. Peguero testified that the rape took place after they left the car at the garage and before they returned. She said that Mr. McCaffrey pulled out a knife, and that his friends in the van parked on a dark street. She said she fought with Mr. McCaffrey.

Mr. Garber, who took over as Mr. McCaffrey’s lawyer after the trial, first asked in November 2007 for the DNA samples taken at the hospital. He said in court papers that the district attorney’s office refused to agree to additional testing or to release the samples.

In February 2008, Mr. Garber filed a motion to have the samples released so they could be checked using a new testing method. In May 2008, the two sides agreed to let the medical examiner’s office begin testing two samples.

Neither was found to have a Y chromosome, so the two samples could not have come from Mr. McCaffrey or his friends in the van, all of whom were men. The medical examiner’s office also ruled out the possibility that the DNA was Ms. Peguero’s.

Last October, Mr. Garber asked the district attorney’s office to join in asking the court to vacate Mr. McCaffrey’s conviction. The court papers say the district attorney’s office refused and argued that the DNA could have come from tears shed by Ms. Peguero’s friends.